India has ruled that sex with an underage bride is rape

India’s Supreme Court has ruled against sex with an underage bride, establishing that sexual intercourse within a marriage where the spouse is younger than 18 constitutes rape. According to Indian law, the minimum age for consensual sex in India is 18. However, until the ruling was made on the 11th of October – coinciding with the International Day of the Girl Child – there was an exception to this rule whereby if the couple was married, intercourse was legal with girls as young as 15.

Supreme Court rules sex with an underage bride is rape

Reversing the exception, the Court stated that, “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception (…) creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child”.
The Court also highlighted that society’s acceptance of underage marital sex only serves as an incentive to marry off children for financial benefit. As many as 30 per cent of girls in India marry before reaching the legal age. Nearly 12 million children under the age of 10 are married, according to national census data. In this sense, it is a landmark decision for the nation, as it concerns a vast part of the population.

What is missing

Although the decision has been welcomed by advocates of women’s rights and child protection, many point to its shortcomings. For one thing, the ruling will be difficult to enforce, considering there are currently no mechanisms to support young girls to report abuse and families are frequently unwilling to put an end to abusive situations. Secondly, the ruling fails to address the issue of rape in marriage from a broader perspective. In India, in fact, marital rape doesn't constitute a criminal offence.

In order to be able to bring any significant change to systemic child abuse in India, one must concede that the application of the ruling has many policy limitations. Nevertheless, it is equally important to cherish this step, as it signals that the justice system is ready to undertake the heavy burden of social reform.